Filed 5/13/20 Felix v. Super. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SCOTT EMERSON FELIX,

Plaintiff and Appellant,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Defendant and Respondent;

THE PEOPLE,

Real Party in Interest and Respondent.

F078523

(Super. Ct. No. 14CECG01263)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Rosemary T. McGuire, Judge.

Scott Emerson Felix, in pro. per., for Plaintiff and Appellant.

No appearance for Real Party in Interest and Respondent.

-ooOoo-

Plaintiff Scott Emerson Felix appeals from an order dismissing his petition for writ of mandate for failing to effect proper service within the three-year period specified in Code of Civil Procedure section 583.210 and for failing to diligently prosecute the matter. Plaintiff’s appellate brief asserts the record will reflect that he not only served the defendants, but he was denied a proper judicial hearing by the trial court. We have reviewed the appellate record and have found no document showing the petition for writ of mandate was properly served.

We therefore affirm the order of dismissal.

BACKGROUND

The narrow issue presented in this appeal is whether plaintiff properly served his petition for writ of mandate. As a result, the details of his incarceration in prison and his transfer to the Coalinga State Hospital as a civil detainee under the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6600 et seq., are not set forth in this opinion. Briefly summarized, plaintiff’s petition asserts he is entitled to an evaluation under the SVPA each year to determine whether he meets the definition of a sexually violent predator. Plaintiff contends he has never received an annual evaluation in accordance with the statute and due process.

On February 24, 2014, plaintiff signed the verification at the end of his petition for writ of mandate. The Fresno County Superior Court stamped the petition “received” on February 26, 2014. On April 9, 2014, the petition was filed and assigned case No. 14CECG01263. The proof of service by mail attached to the petition states plaintiff served the petition by placing it in the outgoing United States Mail receptacle at the Coalinga State Hospital with appropriate postage affixed and addressed to (1) the clerk of the superior court and (2) the office of the district attorney of Fresno County.

A June 10, 2014 minute order stated: “There being no appearances and improper service, this matter comes off calendar. Petitioner may have matter reset when proper personal service is [e]ffected and proper proof is on file.” An October 20, 2014, minute order from a hearing on fee waiver stated: “OFF CALENDAR – No appearance.”

Over four years later, on November 13, 2018, the trial court held a hearing on an order to show cause relating to the dismissal of the petition. Plaintiff attended via CourtCall. No one appeared as a defendant. The minute order stated: “The Court orders the case dismissed pursuant to [section] 583.210 and [section] 583.410.”

On November 29, 2018, plaintiff filed a notice of appeal from the order dismissing his petition. Plaintiff attached a declaration to the notice of appeal stating he sought review of the order on the grounds that (1) he “in good faith has served the Respondents”; (2) he served the court clerk with copies; (3) respondents at Coalinga State Hospital were served; (4) respondents failed to appear at the hearing on the order to show cause; and (5) the trial court failed to hold a hearing on his motions.

DISCUSSION

Section 1088.5, which is part of a chapter in the Code of Civil Procedure addressing writs of mandate, states:

“In a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court.”

The use of the phrase “must be lodged” establishes that submitting a proof of service of the writ petition is mandatory. Requiring proper service of a lawsuit on a defendant—whether a complaint or a writ petition—accomplishes two separate functions. First, it notifies the defendant of the lawsuit. Second, proper service is the act that establishes the court’s authority (jurisdiction) over the defendant. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶¶ 4:1-4:2, p. 4-1.)

Here, plaintiff’s writ petition listed the People of California as the only respondent. If plaintiff was attempting to bring the action against the State of California, service is addressed by Government Code section 955.4, subdivision (a) which states that, subject to certain exceptions, “[s]ervice of summons in all actions on claims against the state shall be made on the Attorney General.” Alternatively, if plaintiff was attempting to bring the writ proceeding against the State Department of State Hospitals, the entity detaining him in custody, section 416.50, subdivision (a) states the summons may be served “on a public entity by delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.”

Here, the proof of service attached to the writ petition states plaintiff mailed the writ petition to the clerk of court and the county district attorney, both at addresses in Fresno. These persons are not the persons identified by the Code of Civil Procedure as persons upon whom service may be made. In addition, our review of the 46-page clerk’s transcript and the 78-page augmented clerk’s transcript has located no proof of service showing a summons and the writ petition were served on the Attorney General or the head of the governing body of the State Department of State Hospitals.

Appellants have the burden of affirmatively establishing the trial court committed prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An aspect of carrying this burden is submitting an appellant’s opening brief with appropriate references to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Here, plaintiff contends the trial court erred because the record shows he served respondents. However, plaintiff does not identify who the respondents are and does not provide a citation to where in the record the proof of service is located. In the absence of (1) a citation to the page or pages in the record supporting his contention that the respondents were served and (2) a document showing the service was made in accordance with legal requirements, we must conclude plaintiff has failed to affirmatively demonstrate the trial court committed error when it dismissed his writ petition. Such a petition must be properly served “within three years after the action [wa]s commenced.” (§ 583.210, subd. (a).) When, as occurred in this case, proper service is not been made within the three-year period, dismissal is mandatory under section 583.250.

In summary, the record does not show proper service of the writ petition was made within the three-year period. Consequently, the trial court was required to dismiss the action.

DISPOSITION

The dismissal order is affirmed. No costs on appeal are awarded because no respondent appeared in the matter.